UK-EU security cooperation post Brexit: are we running out of time?

As the Brexit cliff-edge looms closer, Dr Debbie Sayers looks at what EU/UK police and judicial co-operation might look like in the new legal landscape

As the Brexit cliff-edge looms closer, the question of what EU/UK police and judicial cooperation will look like after Brexit day (30 March 2019) grows ever more pressing.

Transition

“…a limp green, yellow and white Brexit, where the UK has not in any meaningful way taken back control of anything…” (Financial Times, 20 March 2018)

Some issues regarding the forthcoming transition period have been addressed. The current (March 2018) draft Agreement on the withdrawal of the UK confirms that, following Brexit, this period will run to 31 December 2020. There is no provision for it to be extended.

The agreement broadly retains the status quo with the full body of EU law and policies continuing to apply to the UK during the transition (with some specific exceptions e.g. the UK is entitled to opt out of certain justice and home affairs measures (Article 122)). Additionally, “measures which amend, build upon or replace an existing measure” in the area of freedom, security and justice will apply to the UK (Article 122(5)). Negotiations continue and the draft contains highlighted text: green indicates text is agreed; yellow means there is agreement in principle; and no highlighting means the text is yet to be agreed.

But what happens after the transition period?

The draft agreement deals with ‘Ongoing police and judicial cooperation in criminal matters’ (Articles 58-61) setting out how measures such as the European Arrest Warrant (EAW) will apply during the transitional period. For example, the EAW “shall apply in respect of EAWs where the requested person was arrested before the end of the transition period for the purposes of the execution of a European arrest warrant, irrespective of the decision of the executing judicial authority as to whether the requested person remains in detention or is provisionally released” (Article 58(1)). This text, together with Article 59, remains ‘un-highlighted’ so is still to be agreed. Other provisions allow for the UK to continue to participate in joint investigation teams set up before the end of the transition period (Article 58(2)), the application of the Schengen provisions and customs cooperation (Article 59). Article 60 sets out provisions for confirming the receipt of requests/EAWs prior to the end of the transition period and Article 61 continues to apply the Directive on the right to interpretation and translation in criminal proceedings and the Directive on the right to information in criminal proceedings to EAW proceedings. Both Articles 60 and 62 have been agreed.

It should also be noted that, after 29 March 2019, the UK will not be able to participate in the EU institutions. However, the Commission and Court of Justice of the European Union (CJEU) will retain their powers in relation to the UK during the transition period (Articles 82-85).

Post transition

But what happens after the transition period? The UK Government is keen to stress that it is in the interests of the UK and the EU to sustain “the closest possible cooperation” in this area. The UK believes that this mutual interest justifies the creation of unique cooperation arrangements for those initiatives it participates in (for details of those measures see previous blogs on UK-EU security cooperation after Brexit, Part I and Part II). However, none of the EU’s agreements on police and judicial cooperation with non-EU Member States (‘third countries’) are as extensive as those afforded to EU Member States so what form will this cooperation take?

In the Government’s future partnership paper, it proposed a EU-UK security treaty to avoid “a limited patchwork of cooperation falling well short of current capabilities”. Such a “piecemeal approach” would increase “the risk for citizens across Europe.” Instead, it advocates for “a new, more ambitious model for cooperation”, a bespoke treaty, justified by the UK’s geographical proximity to the EU, the volume of cross-border movements, and the joint threats faced.

So, what does this ambitious cooperation model look like?

On 24 May 2018, the Department for Exiting the European Union published four position papers including a 20-page “Technical note on security, law enforcement and criminal justice”. It analyses existing precedents for cooperation between the EU and third countries. It concedes that “as a third country, our relationship with the EU must change” but that the aim of negotiations is “to avoid as far as possible the loss of security, law enforcement, and criminal justice capability and minimise operational disruption for UK and EU law enforcement agencies and judicial authorities”. The paper attempts to identify the best way forward “in a way that is consistent with both the result of the referendum and the UK’s future status as a third country outside the European Union”. This ‘cake and eat it’ approach is justified on the grounds of the wide range of threats faced by the UK/EU.

“A new, ambitious model for cooperation”

The technical note reviews four categories of existing precedents for cooperation for the measures that the UK participates in. It analyses what it describes as the ‘capability gap’ (how the precedents fall short of existing arrangements) in each category. It concludes that limiting the future relationship to existing EU precedents would undermine security arrangements. Strategic agreements providing for cooperation between the EU and third countries on a particular area, offer “a more effective way to deliver the operational outcomes that are needed”. But the treaty seems little more than a vague idea and the paper is sketchy on detail, save for broad propositions such as it should “provide a legal base for cooperation between the parties on EU measures in a specific field”. There is no mention of a role for the CJEU.

There are two sides to these negotiations. Although the European Council’s negotiating guidelines of April 2017 (subsequently re-affirmed) state that the EU stands ready to establish partnerships in areas such as the fight against crime, the Commission outlined in its principles governing the negotiations that the EU’s interests must be protected in any a future agreement, emphasising that a non-Member State cannot have the same rights as a Member State. This would clearly devalue membership.

So, what will the final outcome be? It has been noted that both sides have presented opening positions likely to evolve over time, but the reality is that time is a luxury neither the EU nor the UK has.

Editors’ Note: This post previously appeared on the Kingsley Napley Blog, and is reproduced with permission and thanks.